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USMC | DRB | 2009_Marine | MD0900486
Original file (MD0900486.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20081223
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         NONE              Active:  

Period of Service Under Review:
Date of Current Enlistment: 19951025 / 960730    Age at Enlistment:
Period of E nlistment : Years
Date of Discharge: 20000228      H ighest Rank:
Length of Service:
         Inactive:        Y ea r ( s ) M on th ( s ) 27 D a y ( s )
         Active:  Y ea r ( s ) M on th ( s ) 26 D a y ( s )
 Education Level:        AFQT: 76
MOS: 5800
Proficiency/Conduct M arks (# of occasions): ( ) / ( )    Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA / CONF :

NJP:

SCM:

SPCM:

CC:

Retention Warning Counseling :

- 19990606 :       For unsatisfactory participation in the Selected Marine Corps Reserve. Specifically unexcused absence from IDT on 19990605 and 19990606.

- 19990808 :       For unsatisfactory participation in the Selected Marine Corps Reserve. Specifically unexcused absence from IDT on 19990807 and 19990808.

- 19990911 :       For unsatisfactory participation in the Selected Marine Corps Reserve. Specifically unexcused absence from IDT on 19990909, 19990910, 19990911 and 19990912.

- 19991003 :       For unsatisfactory participation in the Selected Marine Corps Reserve. Specifically unexcused absence from IDT on 19991001, 19991002 and 19991003.

- 19991106 :       For unsatisfactory participation in the Selected Marine Corps Reserve. Specifically unexcused absence from IDT on 19991105 and 19991106.

NDRB Documentary Review Conducted (date):        20080214
NDRB Documentary Review Docket Number:   MD08-00164
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Types of Documents Submitted/reviewed

 Related to Military Service:
                  DD 214:            Service / Medical Record:            Other Records:   

Related to Post-Service Period:  
         Employment:               Finances:                 Education /Training :     
         Health/Medical Records:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:                   Community Service:                References:     
         Additional Statements :
                   From Applicant:            From Representat ion :               From Congress member :    

         Other Documentation :

Pending results of hearing.
Applicant Testified:
Applicant Available for Questions:
Witnesses: Yes (1)
Observers:


Pertinent Regulation/Law

 A. Paragraph 6213 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995 until
31 August 2001.

B. Marine Corps Reserve Administrative Management Manual, MCO P1001R.1, Chapter 3, Reserve Participation and Administrative Procedures, paragraph 300.

C. Table 6-1 of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 August 1995, Guide for Characterization of Service.

 D . Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Nondecisional issue. Wants to become a police officer.
2. Decisional issue . Personal problems were a mitigating factor in his mis conduct.
3. Decisional issue. Discharge does not reflect true character of his service.
4. Decisional issue. Seeks p ost-s ervice conduct consideration .

Decision

 Date: 20 0 9 1116 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FAILURE TO PARTICIPATE .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings for unsatisfactory participation in the Selected Marine Corps Reserve. When notified via certified mail that he was being processed for administrative separation , the Applicant did not respond.

Issue 1: Nondecisional. The Applicant would like to pursue a career in law enforcement. Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
Issue 2 and 3 : Decisional (Equity) RELIEF NOT WARRANTED. The Applicant contends that his p ersonal problems were a mitigating factor in his mis conduct , specifically involving his (then) pregnant girlfriend , compounded by his overall immaturity. While the Applicant may believe his youth and immaturity, coupled with personal problems , were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The Applicant’s record revealed that he had successfully drilled for three years before he started to miss drills. During that period, he did not miss a drill and his average proficiency/conduct ( PRO/CON ) marks were 4.5/4.5 , respectively. The Applicant acknowledged that when he started to miss drills, he received the proper notification from his reserve unit. He chose to ignore these warnings and did not inform his command about his personal problems. As a result, he was given an administrative reduction in rank and discharged for f ailure to p articipate in required reserve drill training.

Additionally, t he Applicant believes his discharge characterization was too harsh and does not reflect the three years of faithful service he rendered to the Marine Corps prior to his administrative discharge . The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When a service has been honest and faithful, it is appropriate to characterize that servi ce under honorable conditions. A Marine may be awarded a General ( Under Honorable Conditions ) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. An U nder O ther Than H onorable C onditions discharge is warranted when a Marine commits or omits an act that constitutes a significant departure from the conduct expected from a Marine. The Applicant’s conduct, which included willfully not reporting to drill periods when it was his legal responsibility to do so, forms the primary basis for determining the character of service. His actions reflect the Applicant’s deliberate failure to meet the requirements of conduct expected of all Marines, regardless of grade and length of service , and f all far short of w hat is required for an upgrade in the characterization of his discharge .

Issue 4: Decisional ( Equity) RELIEF WARRANTED . The NDRB is authorized to consider post-service factors in the recharacterization of a discharge ; h owever, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided a personal statement , certified positive work history for an eight year period , , college transcripts, proof of volunteer service, a clear criminal background check, evidence of financial stability, and a marriage certificate as evidence of post-service accomplishments. The Board determined that his effo rts to improve his life were noteworthy and he had become a contributing member of his community . After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this ca se, the NDRB determined partial relief was warranted based on equitable grounds. The Board voted unanimously to upgrade the discharge characterization to General (Under Honorable Conditions), but not change the narrative reason for separation.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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